Ayado (Suing on her own Behalf as Married Woman and as the Administrator of the Estate of Ndege Jowi - Deceased) v Wangwe & another (Environment and Land Case 002 of 2023) [2025] KEELC 6671 (KLR)
The bottom line
#The Environment and Land Court refused to pause a land case pending appeal, ruling that a dismissal order cannot be 'stayed' and delaying trials requires exceptional reasons.
What this practically means
#Executive summary
#Key legal issues
#Whether the order of 17th December 2024 was capable of being stayed
The order was negative in nature - it merely dismissed the applicant's applications with no order as to costs - and the amendments had already taken effect; there was nothing to stay and the prayers were overtaken by events
The court examined the impugned order and found it merely dismissed the applicant's applications to expunge documents with no order as to costs. Relying on Western College v Oranga as adopted in Kaushik Panchamatia v Prime Bank, a negative order is incapable of execution. Further, the pleaded amendments had already been effected and perfected, so the applicant could not stay that which had already been overtaken by events.
Whether further proceedings in the suit should be stayed pending appeal
Stay of proceedings was refused because it is a drastic measure granted only in exceptional circumstances, no ground of the intended appeal was likely to be arguable, and no prejudice would result since the matter could be started de novo if the appeal succeeded
The court distinguished stay of proceedings from stay of execution, noting the former impinges on access to justice, timely disposal and fair trial, and attracts a higher and more stringent test. Article 159 of the Constitution and the Civil Procedure Act mandate timely disposal. Having reviewed the memorandum of appeal, the judge found no arguable ground, and any prejudice could be cured by a trial de novo if the appeal succeeded.
Legal principles established
#- A negative order, such as an order dismissing an application, is incapable of being stayed because there is nothing to execute
- Stay of proceedings is a drastic judicial action granted only in exceptional circumstances because it interferes with the right of access to justice and fair trial; the test is high and stringent
- Whether to stay proceedings pending appeal is a matter of judicial discretion to be exercised in the interest of justice, weighing the need for expeditious disposal, arguability of the intended appeal and expeditiousness of the application
Court orders
#- 1.The Notice of Motion dated 27th January 2025 is dismissed with costs to the respondent
- 2.The matter shall be mentioned on 16th October 2025 for compliance with Order 11 of the Civil Procedure Rules
- 3.Mention notice to issue
- 4.Each party shall bear their own costs
- Jurisdiction invoked
- Article 159(2)(a) and (d) of the Constitution of Kenya, 2010; Section 63(e) of the Civil Procedure Act (Cap 21); Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ayado (Suing on her own Behalf as Married Woman and as the Administrator of the Estate of Ndege Jowi - Deceased) v Wangwe & another (Environment and Land Case 002 of 2023) [2025] KEELC 6671 (KLR)", Case Analysis (2025). Environment and Land Case (not stated in excerpt; Notice of Motion dated 27th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6671/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.